Property Reserve Redux: Do Statutory Conditions On The Power To Condemn Apply To Precondemnation Entries?

Property Reserve, Inc. v. Superior Court (2016) 1 Cal. 5th 151, is a landmark precondemnation entry case that reinforced the statutory right of a party with the power of eminent domain to enter property to conduct tests and other investigatory work deemed necessary to determine the suitability of property for a public project.

In its latest iteration, the California Court of Appeal for the Third Appellate District, on March 26, 2026 (Department of Water Resources Cases), rejected landowners’ arguments that the Department of Water Resources must meet additional statutory conditions (specifically, as noted at Water Code sections 250 and 11580), that require project authorization and funding, before it may invoke the precondemnation entry statutes.

The Court distinguished the applicability of these conditions, noting that they apply only when the agency seeks to commence a classic eminent domain action to acquire or transfer title to a property as opposed to circumstances where entry is requested under the precondemnation statutes for investigatory purposes as a precursor to a determination as to whether the property ultimately will be acquired.

The Court relied on the plain language of the precondemnation entry statutes and the analysis of the Supreme Court in Property Reserve I and highlighted the use of the term “acquire” in the statutes cited by landowners as imposing conditions on the power to condemn.  It explained:

“The difference in wording shows that the precondemnation entry statutes and the project approval requirements serve distinct legislative goals. The precondemnation entry statutes are intended to allow precondemnation testing and similar activities by any person possessing the authority to commence a classic condemnation action to acquire property for a public use. The project approval requirements are intended to impose timing restrictions on DWR’s ability to exercise that authority, i.e., to regulate when DWR may commence a classic condemnation proceeding.”

The takeaway, as with the original Property Reserve matter, remains that precondemnation entry statutes allow for and govern the process for investigatory access to property provided the conditions of such access meet the Constitutional mandates for the taking or damaging of property. 

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